State v. Smith ( 2013 )

2013 UT App 52_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
SHAWN MICHAEL SMITH,
Defendant and Appellant.
Opinion
No. 20110319‐CA
Filed February 28, 2013
Fifth District, Cedar City Department
The Honorable G. Michael Westfall
No. 101500429
Herschel Bullen, Attorney for Appellant
John E. Swallow and Jeanne B. Inouye, Attorneys for Appellee
JUDGE JAMES Z. DAVIS authored this Memorandum Decision, in
which JUDGES CAROLYN B. MCHUGH
and MICHELE M. CHRISTIANSEN concurred.
DAVIS, Judge:
¶1 Shawn Michael Smith appeals from his conviction and
sentence for second degree felony possession or use of a controlled
substance in a drug‐free zone, see Utah Code Ann. § 58‐37‐8(2)(a)(i)
(LexisNexis 2012), following a guilty plea. We reverse and remand.
State v. Smith
BACKGROUND
¶2 On or about July 20, 2010, Adult Probation and Parole
agents found crystal methamphetamine in Smith’s bedroom. Smith
and his wife (Wife) both admitted to having smoked
methamphetamine that morning and both tested positive for
methamphetamine. Subsequently, the Division of Child and Family
Services (DCFS) took custody of the couple’s two children.
¶3 Smith and Wife reached a joint plea agreement with the
State, wherein Smith agreed to plead guilty to a second degree
felony and Wife agreed to plead guilty to a class A misdemeanor.
Their apparent goal was to keep Wife out of jail so that she could
participate in a reunification plan with DCFS and regain custody
of the children. A preliminary hearing was scheduled for August
4, 2010. However, when Smith appeared at that hearing, counsel
and the court immediately proceeded with the business of
discussing his guilty plea. The district court never asked Smith
whether he was willing to waive his right to a preliminary hearing,
and Smith’s written plea statement did not refer to this right.1
1. Smith was sentenced by a different district court judge than the
one who took his plea. Just before the district court announced
Smith’s sentence, the following exchange took place:
THE COURT: . . . I don’t know if Judge
Walton has the practice of making sure that in a
felony case, you have waived your right to a
preliminary hearing, but I want to make sure we
address that at this point.
. . . I want to make sure that you understand
that you have the right to have a preliminary
hearing. I don’t know if you waived your right to a
preliminary hearing or not before you entered your
plea. But if I proceed to sentencing today, that means
you will never have a preliminary hearing. Do you
(continued...)
20110319‐CA 2 2013 UT App 52State v. Smith
Nevertheless, Smith pleaded guilty to second degree felony
possession or use of a controlled substance in a drug‐free zone in
accordance with the plea agreement. Both Smith and Wife were
represented by the same attorney throughout this process.
¶4 On September 1, 2010, Smith filed a Notice of Conflict and
Request for Counsel, expressing concern that his attorney was
incapable of providing him with effective representation because
he was also representing Wife. At a hearing on September 14, 2010,
the district court permitted Smith’s attorney to withdraw and
appointed new counsel to represent him. On February 9, 2011,
Smith filed a motion to withdraw his guilty plea, arguing that the
plea was not knowing and voluntary. Specifically, Smith claimed
that his attorney’s joint representation of both him and Wife was a
conflict of interest that resulted in Smith being “improperly and
unduly influenced or coerced to enter his own guilty plea,” which
“benefitted his wife to his detriment.” He also claimed that he was
confused at the hearing and could not remember it afterward
because he was not taking necessary medications at the time.
However, when Smith appeared before the court for a hearing on
his motion to withdraw, he reluctantly informed the court that he
wanted to withdraw the motion to withdraw the plea and proceed
with sentencing. The district court sentenced Smith, and this appeal
followed.
1. (...continued)
understand that?
MR. SMITH: I don’t know what happened
with my—that’s fine, I—I guess.
This discussion, occurring after Smith had already entered his
guilty plea, is the only record instance of which we are aware that
Smith was informed of his right to a preliminary hearing and given
the opportunity to waive it.
20110319‐CA 3 2013 UT App 52State v. Smith
ISSUE AND STANDARD OF REVIEW
¶5 Smith argues that the district court erred by accepting his
plea and sentencing him without a bindover.2 Smith maintains that
this error deprived the district court of jurisdiction to entertain his
plea and that his plea was therefore invalid. Whether a court has
subject matter jurisdiction is “a question of law, which we review
for correctness, granting no deference to the district court.” State v.
Nicholls, 2006 UT 76, ¶ 3, 148 P.3d 990.
ANALYSIS
¶6 The State asserts that we lack jurisdiction to consider the
validity of Smith’s plea because he failed to file a timely motion to
withdraw his plea. When a defendant pleads guilty, he “waives all
nonjurisdictional defects, including alleged pre‐plea constitutional
violations.” See State v. Rhinehart, 2007 UT 61, ¶ 15, 167 P.3d 1046(citation and internal quotation marks omitted). Thus, “failure to
withdraw a guilty plea within the time frame dictated by [Utah
Code] section 77‐13‐6 deprives [both] the trial court and appellate
2. Smith also argues that the district court lacked jurisdiction
because the information was defective and because his attorney’s
joint representation of Wife was a conflict of interest that denied
him the right to counsel. In light of the manner in which we
dispose of the bindover issue, we need not consider these other
claims of error. We do observe, however, that his assertion that a
conflict of interest on the part of his counsel created a jurisdictional
bar invalidating his guilty plea is questionable in light of the
supreme court’s decision in State v. Rhinehart, 2007 UT 61, 167 P.3d
1046, in which it held “that claims of ineffective assistance of
counsel raised in the context of challenges to the lawfulness of
guilty pleas are governed by [Utah Code] section 77‐13‐6” and
therefore not reviewable by this court, see id. ¶ 14. See generally
Utah Code Ann. § 77‐13‐6 (LexisNexis 2012).
20110319‐CA 4 2013 UT App 52State v. Smith
courts of jurisdiction to review the validity of the plea.” State v. Ott,
2010 UT 1, ¶ 18, 247 P.3d 344. See generally Utah Code Ann. § 77‐13‐
6(2)(b) (LexisNexis 2012) (“A request to withdraw a plea of guilty
. . . shall be made by motion before sentence is announced.”). This
applies also to review of the constitutionality of pre‐plea
proceedings. See Rhinehart, 2007 UT 61, ¶¶ 16–18 (holding that the
court lacked jurisdiction to evaluate the defendant’s claim that she
was denied the right to confront witnesses during her preliminary
hearing, explaining that a defendant “cannot achieve through a
challenge to the bindover what she was foreclosed from doing by
[Utah Code] section 77‐13‐6—assail the lawfulness of her plea”).
However, Smith argues that the errors he claims are jurisdictional
and that “errors affect[ing] the court’s jurisdiction” are excepted
from the general rule, see id. ¶ 15, because subject matter
jurisdiction cannot be waived, State v. Todd, 2004 UT App 266, ¶ 9,
98 P.3d 46 (explaining that “[s]ubject matter jurisdiction . . . can
neither be waived nor conferred by consent of the accused” and
that an “[o]bjection to the jurisdiction of the court over the subject
matter may be urged at any stage of the proceedings” (citation and
internal quotation marks omitted)), rev’d on other grounds, 2006 UT
7, 128 P.3d 1199.
¶7 The parties do not dispute that Smith neither received a
preliminary hearing nor waived his right to one prior to the time
the guilty plea was accepted by the court and was thus never
bound over to answer in the district court. They dispute only
whether this error was jurisdictional. Smith asserts that because he
was never formally bound over, the district court never obtained
subject matter jurisdiction over the case, while the State maintains
that this error was waivable and thus subject to challenge only
under the Post‐Conviction Remedies Act, see Utah Code Ann.
§§ 78B‐9‐101 to ‐405 (LexisNexis 2012). We agree with Smith that a
failure to bind over a defendant following either a preliminary
hearing or the waiver of the right to a preliminary hearing is a
jurisdictional defect that renders his guilty plea void.
20110319‐CA 5 2013 UT App 52State v. Smith
¶8 The State asserts that bindover is unnecessary in order for
the district court to exercise jurisdiction, pointing out that the
“district court has original jurisdiction in all matters civil and
criminal, not excepted in the Utah Constitution and not prohibited
by law.” See id. § 78A‐5‐102(1). Because Smith’s case is “one of the
type of cases the [district] court has been empowered to entertain,”
see Myers v. State, 2004 UT 31, ¶ 16, 94 P.3d 211 (citation and
internal quotation marks omitted), the State asserts that the court
had jurisdiction to take and enter the guilty plea.
¶9 However, even where a court has subject matter jurisdiction
over a particular type of case, it may be unable to exercise that
jurisdiction where certain procedural prerequisites have not been
met to invoke it. For example, regardless of whether we have
subject matter jurisdiction over a particular class of cases, this court
may not exercise that jurisdiction where the order appealed from
is not final, see Bradbury v. Valencia, 2000 UT 50, ¶¶ 8–14, 5 P.3d 649,
or where the notice of appeal has not been timely filed, see Todd,
2004 UT App 266, ¶ 21. See generally Utah Code Ann. § 78A‐4‐103
(LexisNexis 2012) (outlining the court of appeals’ subject matter
jurisdiction). Similarly, while the district court may have original
jurisdiction over criminal cases, there are procedural limits on its
ability to exercise that jurisdiction. Specifically, in criminal cases in
which a defendant is entitled to a preliminary hearing, “the district
court does not acquire jurisdiction until after a bindover order
issues and the information and all other records are transferred to
the district court.” State v. Humphrey, 823 P.2d 464, 465 n.2 (Utah
1991).
¶10 The State’s argument focuses on the jurisdictional effect of
the district court’s failure to hold a preliminary hearing, asserting
that because a preliminary hearing may be waived, the
unconstitutional denial of that hearing is nonjurisdictional and can
be contested only by virtue of a petition for post‐conviction relief.
See Utah Code Ann. § 77‐13‐6(c) (“Any challenge to a guilty plea
not made within the time period specified in Subsection (2)(b) shall
be pursued under Title 78B, Chapter 9, Post‐Conviction Remedies
20110319‐CA 6 2013 UT App 52State v. Smith
Act, and Rule 65C, Utah Rules of Civil Procedure.”); Rhinehart, 2007
UT 61, ¶ 15 (“Except in those instances in which errors affect the
court’s jurisdiction or where claims of error are expressly preserved
for appeal, a conviction or guilty plea acts as a waiver of earlier
procedural flaws.”). While we agree that constitutional and other
defects in the preliminary hearing or waiver thereof are
nonjurisdictional, see, e.g., Rhinehart, 2007 UT 61, ¶¶ 16–18 (holding
that depriving a defendant of the right to confront witnesses at a
preliminary hearing was a nonjurisdictional defect that could be
waived via a guilty plea), the complete lack of a bindover order in
this case—based on either a determination of probable cause
following a preliminary hearing or a determination that the
defendant waived the right to a preliminary hearing,3 see Utah R.
Crim. P. 7(h)(1), (i)(2)—deprived the district court of jurisdiction to
entertain Smith’s guilty plea.4 See Humphrey, 823 P.2d at 465 n.2.
3. Claims relating to the validity of the waiver itself are waivable
and thus not reviewable by any means other than a petition for
post‐conviction relief once a guilty plea and sentence have been
entered. See Rhinehart, 2007 UT 61, ¶ 15 (explaining that a guilty
plea “waives all nonjurisdictional defects, including alleged pre‐
plea constitutional violations” (citation and internal quotation
marks omitted)). Thus, even a constitutionally defective waiver of
a defendant’s right to a preliminary hearing could invest the
district court with jurisdiction if it resulted in a bindover. However,
in this case, no waiver—valid or otherwise—was effected prior to
the time the district court accepted and entered Smith’s guilty plea,
and thus Smith was never bound over at all.
4. The State relies on this court’s holding in State v. Canfield, 917
P.2d 561 (Utah Ct. App. 1996) (per curiam), that “[a]ny alleged pre‐
plea defects, including the absence of a preliminary hearing, were
waived by entry of the guilty plea” in support of its assertion that
the lack of a preliminary hearing is not jurisdictional. See id. at 562.
However, it is unclear from the factual background contained in
(continued...)
20110319‐CA 7 2013 UT App 52State v. Smith
CONCLUSION
¶11 We hold that a district court cannot exercise its jurisdiction
to accept a guilty plea until the defendant has been bound over
following either a preliminary hearing or the defendant’s waiver of
a preliminary hearing. Because the lack of a bindover in this case
deprived the district court of jurisdiction to accept Smith’s guilty
plea, that plea is invalid.5 Accordingly, we reverse and remand for
further proceedings.
4. (...continued)
that short per curiam decision whether the defendant, in spite of
apparently not having had a preliminary hearing, was actually
bound over to answer in the district court. Because we determine
that it is the bindover itself that has jurisdictional implications, not
the events resulting in the bindover, this isolated statement from
the Canfield court is not helpful to our analysis.
5. We express no opinion regarding the effect this ruling may have
on the joint plea agreement involving Wife.
20110319‐CA 8 2013 UT App 52